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DISCOURSE 



IN MEMORY 'OF THE 



LIFE AND CHARACTER 



OF THE 



HON. GEO. E. BADGER, 



DELIVERED BY 



WILLIAM A. &nAHAM, of Orange, 



(BY REQUEST OF THE BAB OF WAKE COUNTY,) 



AT RALEIGH, JULY 19th, ISGO. 



RALEIGH : 

NICHOLS, GORMAN & NEATIIERY, BOOK AND JOB PRINTERS. 

186(3. 






\ ' 



t 






At a meeting of the Bar of W:iko County, held in the Court Hou^e, in the City 
of Ealei^'h, on the 22nil day of May. l^HiQ, the Hon. Charles Manly being Chair- 
man, and W. K. Barham, Esq., Secretary, the following resolution, offered by 
Kemp P. Battle, Esq., was unanimously adopted : 

Kesot.ved, by the Members of the Bar o? Waice Cot:nty, Tint a Com- 
mittee of five he rai ed to :eqiie-tin thiir liehnlf the lion. William A.Gniliamto 
deliver in thi-; Citv, ut such time as may be to 1dm a.ijaeable, a Memorial Ad- 
dre!.s on the life and character of the late lion. George E. Badger. 

Under the resolution, the following were designated as the Committee, viz: 
Kemp P. Battle, Esq., Hon. John H. Bryan, Hon. Thos. Bragg, H. W. Ilusted, 
Esq., and lion. Sion H. Rogers, and, on motion, the Chairman was added to the 
Committee. 

A copy of the resolution having been commanicatcd to Mr.. Graham, 
he consented to comply with the request therein coutaiaed, and, by sub- 
sequent arrangement, the 19th of July, 186S, was designated as the time, and 
the Commons Hall in the City of Raleigh the place, for the delivery of the Ad- 
dress. The following correspondence will show the occasion of its publication: 

Raleigh, July 19lh, ]fc6G. 
Hon. W. a. Graham, 

Den >• Sir: — Tlii' nicinbers of the Wake CoTinty Bar instruct us to exi r>^ss to 
you tlieir tlianks f.r the very able, and eluqurut ad !ress delivered bv you ar 
their in^t.ince in nu-mory of their late distinguished fellow mLmb; r, lion. 
Ge()i;eg E .Badger. 

'L'iiey feel that a iliscom'.«e so full of instructive lessons sliould 1)0 ])ut in an cn- 
dur.ni furm, an ! they therefore earnestly request tliat you will fiuniish thorn a 
copy of tae oami- fi,>r publication. 

Very truly yours. 

KEMP P. B.VTTLE. 1 
Cll.VllLES .M.WLY, I 
JOHN'. II. r,RY.\X, \r^,r.rr.^^^^,. 
W. W. llLTsri:i). [Committee. 

TIIOM.VS IJRAGG, 
SIGN H. ROGERS,. J 



IliixSBORO', July 3!st. 1SG6. 
Gentlemen: Your note of the 19th instant h is bn-n rfceivcd. ;ind .•ii:n'eal>ly 
to your ri'<]U('st I pbue at your (lisjiosal, the copy uf my discourse delivered un- 
der your apiiiJiutmevit on the J'.itii in-t. 

Willi sincere regard and respect, yours, &c, 

W. A. GRAHAM. 
Messrs. K. P. Battle, and others, Committee. 



X 



git^amtmsa^ssxa^eBa 



A-DDHESS. 



I, 



My acquaintance withJMr. Badger commenced in the latter 
part of the summer of eighteen hundred and twenty-five. 
He had ah-eady completed his service as a. Judge, which 
office he resigned at the close of the spring circuit of that 
year; had contested the palm of forensic eloquence and pro- 
fessional learning with Seawell and Gaston, with a wide 
increase of reputation, at the recent term of the Supreme 
Court, and was returned to the practice in Orange, where he 
had once resided, in generous competition with Murphey and 
Nash, Yancey and Mangum, Hawks, Haywood and others, 
Mr. Euliin, hitherto the leader at this bur, having been 
appointed his successor on the bench of the Superior Court. 

Pie was then a little turned of thirty years of age. One 
half of the time since his majority had been passed upon the 
bench, yet his fame as a lawyer was fully established; and 
though he doubtless afterwards added vastlv to his stores of 
eruchtion, in quickness of perception, readiness of compre- 
hension, clear and forcible reasoning, elegant and imposing 
diction, in all that constitutes an orator and advocate, he had 
attained an emioence hardly surpassed at any period of his 
life. From that time, and before it I know not how long, till 
the day lie was stricken by the disease which terminated his 
life, in Xorth Carolina, at least, his name was on every tongue. 
He was not only a marked, and distinguished, but an eminent 
man. So bright and t-liining a character could not but 
attract general observation ; and though 

" Hard is his fate on wliom.the puWic gaze 
Is fixed forever, to detract or i>iaise; " 

and while, with a gay and hilarious nature, fi'ank, but some- 
what eccentrical manners, and unequal powtrs of conversation, 

^^— ITT- <ji»,iLi..i...ji»iminmiuM...i»iu»Lmijii_..u,u, , ».r vw.T-mrr.-r 









united with some infirmity of temper, his expressions and 
conduct in the earlier half of his life were often the subject 
of severe criticism ; yet, in the long period of from forty to 
fifty years, in which he moved "in the high places of the 
world," no one denied him the gifts of most extraordinary 
talents and unswerving integrity and truthfulness. Even in 
the particulars in which complaint had been made, an imputed 
hauteur and exclusiveness, his dispositions were either mel- 
lowed by time, or, what is more probable, his character came 
to be better appreciated from being better understood; and 
for years before his sad eclipse from useful life, no man enjoyed 
more of the general confidence and favor of the people, as 
none had possessed in a higher degree their admiration. 

Transferred to the more extended field of jurisprudence 
administered in the Courts of the United States, and after- 
wards to the Senate of the nation, he took rank with the first 
advocates, jurisprudents and debaters of the Union; and the 
purity of his morals, the elevation of his character, his readi- 
ness and accomplishments as a conversationist, the gayety 
and vivacity of his manner.^, rendered him a general favorite 
with old and young, the grave and gay in the brilliant society 
of the metropolis in his day, and will cause him to be remem- 
bered among the most renowned and gifted Americans of the 
age m which we live. 

An individual so admired, so deserving of admiration when 
living, may well claim the tribute of a suitable memorial 
when dead. Hence the resolutions of the gentlemen of the 
bar in Wake, the county of his residence, and the imperfect 
attempt to execute them by the ceremonies which have 
brongiit us together. 

George Edjicxd Badger was born in Xewbem, North Caro- 
lina, on the 17th of April, 1795. His father, Thomas Badger, 
Esq., the son of Edmund and Lucretia Badger, was a native 
of Connecticut, and his birtli is recorded to have taken place 
at \Yindham, in that State, on the 27-th of June, 17GG. Hav- 
ing received a good education, he came in early manhood to 
Newbern and thence to Spring Hill, in the county of Lenoir, 



L-w.7»r~.^.mn-T-T^»rTri71!HMFW3 



where for some time he taught a school, but was then proba- 
bly a student of the Law, and was in due time admitted to 
the practice of the profession in this State. Fixing his resi- 
dence in Newbern, he early rose to distinction as a practition- 
er, and appears in the published reports as one of the leading 
counsellors inthe Courts of tliat riding, and in the Supreme 
Court of ^l*rtrslate, from 1792 till his death, which occurred 
from yellow fever while in attendance on a Court at Wash- 
ington, in Beaufort county, on the 10th of October, 1799. 

The traditions of the profession, and other intelligent per- 
sons of his acquaintance, represent hira as a man of deter- 
mined character, and great intellectual and professional abil- 
ity, and leave the question in doubt whether, at the same pe- 
riod of life he was more than equalled by his son. The late 
Peter Browne, himself one of the first lawyers and men of 
letters of his time in Xorth Carolina, a cotemporary at the 
bar of the senior Badger, spoke of him, before the entrance 
of his son into public life, as one of the ablest men he had ever 
known, and especially as possessing a power to fascinate and 
control masses of men in the most remarkable degree — a 
power, he added, which the son might exert with similar 
effect, if he would. 

The correctness of this opinion of Mr. Browne was fully 
verified by the addresses to jiopular assemblies of the subject 
of our notice, twenty years and more after it was expressed. 

His motlier, by ]iame Lydia Cogdell, was the daughter of 
Colonel liichard Cogdell, of Xowberu, a gentleman of much 
consideration under the Provincial rule in North Carolina, 
and an active and bold leader in the movement of the Revo- 
lution. As early as August 1775, his name appears second 
on the list of the committee of safety for Xewbern district, 
appointed by the first Congress of the Province, (that of Al- 
exander Gaston being at the head,) and the perforation made 
by a musket ball fired at his person by a British or loyalist 
soldier, diuiing the occupation of tliat town by the royal 
forces under Major Craig, in 1781, is still visible in the door 
of his mansion in Xewbern. This lady was a person of sin- 



Btao 



IBBM^ 



a^^BI 



aSBMSBt^SSSZ^S 



6 

gular vigor of mind and character, well fitted to encounter 
the cares and trials of her early widowhood. Her husband 
had experienced that which has been said to be the common 
lot of the profession in this country, "to work hard, live 
well and die poor," and left her with but little fortune to rear 
three children, of whom George was the eldest, au,d the only 
son. *•- - 

According to her narrative, he manifested no fondness for 
books, and made little progress in learning till about seven 
years of age. At that period she placed in his hands Gold- 
smith's Animated Nature. He was delighted with its peru- 
sal, and she never found it necessary to stimulate his thirst 
for knowledge afterwards. His preparatory course was taken 
in his native town of Newbern, and at the age of fifteen he 
entered Yale College. There he passed through the studies 
of the Freshman and the Sophomore classes, when his edu- 
cation, so far as depended on schools, was brought to a close. 
A relative, a man of fortune at the North, who had hitherto 
furnished the means for his college expenses, (his own patri- 
mony being wholly insufficient,) and from whose bounty he 
had hoped to pass on to graduation, suddenly withdrew his 
^support and leit him to his own exertions. Of tije motives 
^^"Btlhis unexpected arrest in his college career, on which so 
much might have depended, it is useless, now at least, to 
speculate or inquire. But it will be a source of gratification 
to his friends to be assured that it was attributable to no de- 
merit in our student. True, his cotemporaries at Yale differ 
widely in their estimation of his capacities while there. The 
Northern students, who belonged to a diflerent society, re- 
garded him as a frolicsome youth, averse to mathematics, 
and fond of novel reading, who gave no indications of supe- 
rior endowments. 

On the other hand, a college classmate* and member of the 
same society, who knew him intimately throughout life, and 
was five and twenty years associated with him at the bar, af- 
afiirms tliat "he was, beyond dispute, the first boy of his class 



*Thoin:is P. Deveroux. Esq., of Halifax. 



" iiii^ ri 



-!•<•• J iamn.7irm 



composed of seventy individuals, many ofthem afterwards dis- 
tinguished men. He was not," says this friend, " a hard stu- 
dent of the prescribed course. Perhaps I ought to add, that he 
was reiin^ in his college duties, but he was eager fori© inior- 
niatioii^most wonderful degree, andamonghis fellow students 
he exhibited the same intellectual superiority, we have seen 
him so steadily maintain among men." To the same source 1 
am indebted for the following observations concei-nifi^ his elo- 
cution, which 1 repeat for the advantage and encouragement of 
the vouno:. "I think," he remarks: " that the thou.'^ands who 
listened to the fluency with which ]\Ir. Badger spoke, the 
clearness of his enunciation, the exact accuracy of his sen- 
tences and the carefulness of their formation — the right words 
always in the right places — will be surprised to learn that in 
liis youthful attempts in debate he was almost a stammerer. 
1 have heard him say he owed exemption from downright 
stuttering to his father, whom he remembered with affection, 
though under five years of agv^ at the period of his decease, 
who would not permit him to speak w^hile he hesitated in the 
leaet, but required him to stand by his side perfectly silent, 
until he had collected himself and arranged his thoughts. 
He, himsell^ often asserted that any one could speak fluently 
who thought clearly and did not lose .his presence of mind." 

H<3 made known to President D wight the reception of the 
letter announcing the withdrawal of the patronage by which 
he had been thus far supported, and the res angustoe domi 
which caused him to bid adieu to Yale, when reaching the 
portion of her curriculum by which his expanding mind 
would have most profited, and left with the regrets and kind 
wishes of that venerable divine and instructor. In after years 
when he had established a character, his alma rndter honored 
herself by volunteering a degree to her barely risen Junior, 
and enrolling his name among her sons with whom he should 
have graduated in 1813, as, at a later period, she acknowl- 
edged his still higher advancement in liberal learning, by 
conferring upon hini the grade of Doctor of Laws. 






8 

He appears to have indulged in no unavailing grief at the 
freak of fortune which blasted his hopes of a collegiate edu- 
cation, but returning home, though but little over seventeen 
years oflfge, betook himself at once to the study of th| Law. 
His legal preceptor was his maternal cousin, the Hofi.'^ohn 
Stanly, of Newborn, who as an advocate, a statesman, a par- 
liamentarian, a wi^nd adept in conversation, is one of the 
historical*#?«le5^ o^orth CaroKna ; and who, viewing him as 
I did, from the gallery of the House of Commons in my boy- 
hood, impressed me as an orator of more graceful and elegant 
manner and action, according to my conception of the Cice- 
ronian standard, than any public speaker it has ever been my 
fortune to hear. 

My. Badger was granted a license to practice the Law in 
the County Courts in the summer of 1814, and, according to 
the usual probation, in the Superior Courts in 1815; the 
Judges of the Supreme Court consenting to relax the ordinary 
rule and overlook his non-age, by reason of the narrowness 
of his fortune and the dependence of his mother and sisters 
upon his exertions for their support. The war ^^ath England 
raging in the former year, and an invasion of the State being 
threatened by the British forces under Admiral Cockburn, 
then Irovering on our coasts. Governor Ha v kins called out 
the militia, and, himself, took the field in an expedition for 
the defence of Newbern and Beaufort. In this expedition, 
j\Ir. Badger served as aid-de-camp to General Calvin Jones, 
of Wake, with the rank of Major, but the alarm soon ceasing 
with the retirement of the enemy, the soldier was again re- 
solved into the youthful barrister. A vacancy occurring in 
the office of SoHcitor to prosecute the Pleas of the State in 
that riding, alaout this time, he was introduced to public no- 
tice by the temporary appointment from the Judge, and made 
one circuit in that capacity. 

In 1816, the year of his majority, he was returned a mem- 
ber of the House of Commons, from the town of Newborn; 
and whatever advantages he may have lost by his retirement 
from College, (and they were doubtless many and important,) 



it may well be questioned whether any of the more fortunate 
youths he had left behind in the classic shades of Yale, were, 
by this time, better fitted to play a disting-uished part in a I 
deliberative assembly or a court of justice. What, with the 
instruction of Mr. Stanly, the conversation, intercourse and 
example of that accomplished gentleman, and his compeers, 
Ga&ton, Edward Graham, JMoses JMordecai, and others, whom 
he met at the bar, or in society, but above all by his own pro- 
found study (which the vivacity of his nature, and the bril- 
liancy of his parts, were calculated to keep out of view,) he 
had not only made great attainments in the Law, but, what 
is now I fear becoming rare, a familiar acquaintance with the 
classic authors of English literature, and with the arts of 
rhetoric and composition ; and wrote and spoke our language 
with a readiness, force, precision, and propriety, the more re- 
markable because equally conspicuous in jocose and trifling 
conversation, (in which he freely indulged), as in public ad- 
dress. As a critic, whether under the inspiration of a "good 
or bad natured muse," he has had few peers among the judges 
of "English undefiled." His appearance in the Legislature 
was the advent of a new star above the horizon; somewhat 
erratic and peculiar in its orbit, but effulgent even in its ir- 
regularities, and, when the subject or the occasion required 
mature thought and was within the range of his studies and 
information, shining with a splendor not unworthy of the 
oldest and greatest lights of tlie firmament. 

Tradition furnishes anecdotes of many encounters, during 
the session, of gladiatorial skill, in which his love of pleasantry 
arid the gaudia cerfaminis involved him with the late Attor- 
ney General Drew% a son of genius and of Erin, and others, 
Avitli various success: but it assures us, that this, his first and 
last session in the General Assembly, closed with a profound 
impression and universal acknowledgment of his genius, cul- 
ture and liigh promise for the future. 

The Hon. Thomas Huflin, the Speaker of the House of Com- 
mons, who had been first appointed a Judge of the Superior 
Courts during this session, discovering in JNIr. Badger a con- 



10 

genial spirit, alike emulous with kimself of liberal culture and 
professional distinction, invited liim to take bis briefs and 
pursue the practice in Orange. The acceptance of this pro- 
posi ion carried him to Hillsborough as his place of residence, 
for the ensuing two o-r three years, during which, having 
married the daughter of the Honorable James Turner, of 
Warren, he transferred his home to Warrenton and thence to 
Louisburg, where he continued to reside until his retirement 
from the bencli in 1825, when he removed to IJaleigh, and 
there abided during the residue of his life. 

How well he had maintained his professional character in 
the new field of his practice is obtserved in the fact, that with 
but little of what is known as personal popularity, he was ap- 
pointed a Judge of the Superior Courts of Law and Equity by 
the Legislature in its session of 1820, at the age of twenty- 
five. In this office he rode the circuits four years v/ith ad- 
mitted a])ility, candor and impartiality, as a magistrate, eva- 
ding no question and no duty, but, on the contrary, thought 
sometimes to err from quickness of temper and too great 
readiness to assume responsibility; with a courtesy to the 
profession which won general esteem, and with the admira- 
tion of the public ;which, tliough sometimes murmuring at the 
severity of a sentence or a supposedarbitrary or whimsical order, 
regarded, with equal wonder, the promptness and force with 
wliich he discussed questions of law with the veterans of the 
bar on the various ridingvS, and the intelligent, amusing and 
instructive conversation, with which he habitually entertain- 
ed his acquaintances and associates, and which made him a 
marked personage in every circle that he entered. 1 men- 
tion a single case in his administration of the law as illustra- 
tive both of the firm and impartial hand with which he dealt 
out justice, and the jealous care Avith wliich the Judiciary of 
North Carolina has ever maintained tlie protection and rights 
of the weak against the strong and influential. A citizen of 
great fortune and advanced ago, who had represented his 
county in earlier years in either House of the Legislature, and 
of numerous and influential connections, charging a free ne- 



mv 'M»*^i.'Ji»VMM 



gro with larceny upon his property, had brought him by 
warrant before a Justice of the Peace, and prevailed on the 
Justice to try and convict him of the allegation, and sentence 
him to punishment by stripes, which were inflicted— a pro- 
ceeding allowable by law, provided the offender had been a 
slave. But here the culprit was a free man; and by the con- 
stitution entitled to public trial in open court before a Jury 
of the country. The Prosecutor, with the Justice and Con- 
stable, was arraigned before the Superior Court for this vio- 
lation of law, and their guilt being established, Judge Badger, 
who happened to preside at this terra, was strongly inchned 
%o imprisonment of the principal defendant, and was only de- 
terred from its imposition by reason of his age and state of 
health; but, announcing that this was omitted from that cause 
onlv, sentenced him to a line of twelve hundred dollars, the 
Justice to fifty and the Constable to ten dollars, the differ- 
ences being made on account of their several grades of intel- 
ligence, and consequent ciimiiiality, as well as of ability to 

pay. 

From the time of his return to the bar and location at the 
seat ot government, until the access of divsease which sudden- 
Iv, and, as it proved, finally, arrested his course, he was de- 
voted to the practice of his profession; with a suspension for 
a few months occasioned by his call to the head of the Navy 
Department as a Cabinet counsellor of President Harrison, 
which was continued under the succession ol ^Ir. Tyler until 
his separation from the party by which he was elected; and 
such further interruption as was produced by his occupation 
of a seat in the Senate of the United States from 1846 to 1855. 
Durino: this forensic career of almost unexampled renow^n and 
undisputed ability, he was at different times pi-oposed by Ex- 
ecutive nomination for the bench of the Supreme Court, both 
of his own State and of the United States; but the spirit of 
party exacted a denial of his confirmation by the assenting au- 
thoi-ities, though of his eminent qualifications no man doubted- 
He appeared in all the great causes argued in the Supreme 
Court of the State and the Circuit Court of the United States 






o« 



1 

12 

for the District of Xortli Carolina, during tliis period ; and in 
tlie latter portion of it, in many of those in the Supreme Court 
of the United States. 

If it be true, as remarked by Pinckney, in one of his fami- 
liar letters published by ,Wheaton, that "the bar is not a 
place to acquire or preserve a false or fraudulent reputation 
for talents," it was eminently so in his case. He had an in- I 
trepid and self-reliant mind which, disdaining artifice, timidi- 
ty or caution, struck out into the open field of controversy 
with the daring of conscious power, and shunned no adver- 
sary not clad in the panoply of truth ; was as ready to chal- 
lenge the authority of J\lansficld or Denman, Eoslyn or El- 
don, if found deflecting from the paths of principle or prece- 
dent, as that of meaner names. If, from want of oppoi'tu- 
nity or inclination, he had failed to master the mathematics 
of numbers, he made himself a proficient in the mathematics 
of life, (as our law, from the exactness of rule at Avhich it 
aims, has been not inaptly denominated,) and by a rigorous 
logic was prompt to expose whatever could not bear the test 
of reasion. Yet, it was a logic free from the pedantry of the 
schools, apparently not derived from books, and accompanied 
by a rapidity of mental action, giving to it the appearance of 
intuition. Whether in analysis or s^'uthetical reasoning, in 
dealing with facts before juries or the most intricate question 
of law before courts, these faculties were equally conspicu- 
ous, and attended, when occasion called for their use, with 
powers of humor, sjircasm and ridicule hardly inferior to 
those of ratiocination. Added to all ^A'hich, there was a lu- 
cidness of arrangement, an exact grammatical accuracy in 
every sentence, a forcible and graceful style, which, indepeiid- 
entlv of a clear and distinct enunciation, a melodious voice 
and engaging manner, imparted even to his extemporaneous 
arguments the charms of polished composition. 

He was never ostensibly a severe student, but his learning 
in his profession was profound and necessarily the fruit of 
much study; acquired probably not by regular reading of ele- 
mentary books, but whenever in his practice, which was ex- 



BjCTI 111 •HiV?Brra»mrifiM 



13 

tensive, or by other means, his cnriosity became e:s:cited on 
any topic, he pursued it until he liad mastered it in all its 
ramifications, — a habit of mind, which he was accustomed to 
apply to other subjects, liistorical, literary, or scientific, to 
which his attention might be attracted, and especially to 
that exalted science to "which fui-ther allusion may be made 
in the sequel. His familiar acquaintances, h(9wever, I think, 
must be satisfied, that he was greatly favored in the ease and 
rapidity with which he acquired knowledge, and will concur 
in the remark made by one of the most distinguished mem- 
bers of the profession, soon after my first introduction to him, 
that '' he could learn more in the same time than any man he 
had ever known." 

He attained a high degree of knowledge in every branch 
of the law; whethcii- in the doctrine of real estate transmit- 
ted by Coke, and cotemporaries from the days of the Tudors, 
and before; the modifications introduced by commerce and 
the higher civilization of more recent times; the supplemen- 
tal code of equity jurisprudence, invented to eke out the 
scanty justice of rude Barons and ignorant feudatories, and 
to apply rules of morality to the affairs of men; or in the 
criminal law, and the subjects of jurisdiction peculiar to the 
courts of the United States. And in the altercations of par- 
ties through their counsel in writing, which we style plead- 
ings, (designed, by a severe logic, to present their points of 
disagreement for the decision of courts and juries,) in all 
these departments, his productions were models, which 
might be safely transferred to books of precedents for the in- 
struction of his juniors; an adeptness, ascribable, not more 
to the acuteness of his miderstanding, than to his accom- 
plishments as an English linguist and critic, causing a false 
inference, or ungrammatical phrase, to elicit his disapproba- 
tion like a false note on the eJir of a musicwffir' 

These resources were ever at the command of his brethren, 

and of the court ; before which some of his highest efforts 

were made, in causes in which arguments had been invited, or 

in which the sul)ject of contest attracted his thoughts from 

i ^ 






■ its connexion with his favorite studies,- and were delivered to 
no other auditors save those whose presence w-as required by 
dutv. On an occasion of this kind, in a case of indictment 
for blasphemy, the question had been raised whether the 
Christian religion was a part of the common law, with a sug- 
gestion that, ii it was, it might be altered by statute, Mr. 
Badger volunteered an argument for the causeof religion and 
sound morality. It so happened, that as he opened his case, 
a venerable citizen of the State,, of great intelligence, entered 
the court room to speak a word to the reporter, expecting 
immediately to retire. He was, however, so fascinated with 
the manner of the speaker, the splendor of his diction, the 
copiousness of his- theological and legal learning, the force 
and clearness of his arguments and; the precision with which 
they were stated, that he sat down and heard him to the 
close, observing, as he withdrew, " what folly ever to have 
made him a Judge; he ought to have been a Bishop," 

Literature, whose office it is to preserve the results of learn- 
ing, knowledge and fancy, has made so little progress among 
us that there has not been much effort to save from oblivion 
the discussions at the bar or in the delibeyative assemblies of 
the State, the chief theatres of pubUc intellectual exertion 
besides the pulpit, and none at all as to those forensic dis- 
plays at nisi prius, which, dealing with the facts and incidents 
of life, the dispositions, passions and souls of men, afford the 
noblest field for exhibitions of eloquence. Had Mr. Badger 
been studious of poethumous fame, and bestowed half the 
time in repcu'ting his speeches in the more important of his 
causes on the circuit, which Cicero recommends and practiced 
in the preparation of his orations, the result would have been 
a most interesting contribution to American rhetorical litera- 
ture. There are occasions enough within the recollection of 
many wlii> 'wi'pny. present, in Wake, Orange, Granville, Halifax 
and elsewhere, when his utterances, even if printed as deliv- 
er(Ml, would have formed a velume of no less interest than 
the speeches of Wii't or Emmet, Erskine or Curran; as well 
as afforded an insight int,-;> events, crimes, transaction of 



'■-'HrnTa— M^w^B^ff^TTinPT' ^rwt-'nii^TT 



KSSBXsaasB 






15 

biTsiness and the state of society of our times,, such as the 
nnise of history derives from fche records of courts of insticc. 
Two causes in the Circuit Court of the United States, in 
the days of Chief Justice IMarsball, are especially remem- 
bered, which were among; the themes of his most admired 
arguments, aud in which he overcame the preconceived 
opinions of^ti* p,ix'iit Judge, though impressed and supported 
by the acknowledged abilities, learning and persuasiveness | 
of Gaston. These were the cases of W'hitaker vs. Freeman, 
an action for libel in twenty-five different counts, and- Latimer 
vs. Poteat, one of a series of cases in ejectment, to recover 
immense bodies of Luid in the western counties, claimed by 
citizens of northern States under purchases from speculators, 
who, it was alleged, had made their entries and y)rocured 
grants before the extinction of the title of the Cherokee 
Indians, in violation of law; the defendants claiming, under 
grants from the State, after the admitted cession of the Indian 
title, and Mr. Badger being retained by the State to defend 
their interests. This latter ctuse, involving the relations of 
North Carolina while a separate, sovereignty, and afterwards 
of the United States with the Cherokee Indians, as regulated 
by sundry treaties, the location of several lines of partition 
between them and the whites agreed upon,, but removed fur- 
ther and further west as the population of the superi.M- race 
increased and emigration adviinced, surveys partially or wh(>ll;]P' 
made to establish these lines through a mountainous, and in 
many parts, an impervious country, imputed frauds in trans- 
gressing those lines, making entries without actual survey, 
and planting trees, the indigines of fertile soil, as- corners on 
barren wastes, with affidavits that they were the native growth 
of the country, with divers other topics of dispute, was of 
exceeding, volume and complication in its facts, and occupied 
a week in the trial. The argument, running through four 
days, was said to be the most elaborate on both sides ever 
made in the State, in a jury trial. It resulted iu a verdict 
and judgment for the defendant, w liich was afterwards affirmed 
on error in the Supreme court of the United States. After 



i.'iiM..m.. -i-r ■■ ■ i.^.''LJ.lim/' ' VJ»z« 



IHIillHi 



16 



the trial, Judge ]\Iarshall, in the simplicity and candor of his 
great character, observed to the then Governor of the State, 
" at the close of Mr. Gaston's opening argument I thought he 
had as good a case as I ever saw put to a jury, but ]\Ir. 
Badger liad not spoken two hours until he satisfied me that 
no one of his positions could be maintained.". 

To this instance of laiidatus a laudato viro,'!" esteem it not 
improper to add a few others from sources only less eminent: 
Chief Justice Henderson declared in my presence that " to 
take up a string of cases, run through them, extract the prin- 
ciple contained in each, and discriminate the points in which 
they differed from each other, or frr m the case in hand, I have 
never seen a man equal to George Badger." 

Judge Seawell remarked of him, " Badger is an elementary 
man," and, continuing in his peculiar and racy style, '* he 
goes to first principles; he finds the corners of his survey, and 
then runs out the boundaries, while others hunt along the 
lines. The difference between him and myself is, that when 
I take up a book I read slowly, pausing at the end of each 
sentence, and when I have reached the bottom of a page I 
must stop and go back to see whether I fully comprehend the 
author's meaning — while he reads it off like a novel, and by 
the time he gets to the bottom of a page or the end of the 
treatise, he has in his mind not only all that the author has 
taught, but a great deal that the author never knew." 

Chief Justice Ruffin, yet surviviuG,- in honorable retirement 
from the labors of the profession, whose early appreciation of 
the faculties of Mr. Badger we have already noticed and before 
whom, as a Judge of the Supreme Court, he was in full prac- 
tice for twenty-three years, affirmed to me, since the death of 
Mr. Badger, that in dialectic skill and argument he excelled 
any individual with whom he had ever been acquainted, not 
even excepting Chief Justice Marshall himself, for that he 
possessed the faculty of imagination and caj^acities for illus- 
tration which Judge Marshall had not. 

Another friend, to whom 1 am indebted for much that lias 
been already stated of the early life of the subject of our me- 



>o« 



*o 



17 



s 



moir, asserts that "in an intimate association with him in the 
practice of the kvw for more than twenty-five years, I never 
knew liim to mistake the testimony of a witness or t}ie argu- 
ment of liis adversary, and I think I may add that he uni- 
formly argued witii entire logical integrity upon the premise 
his duty required him to assume." Of his arguments in the 
Supreme Court of the United States, probably the most im- 
portant were ni the controversy as to their boundary between 
the States of Georgia and Florida, and in the case in- 
volving ttie title to the quick-silver mines of California.' 

His noble bearing as an advocate and elevation above all 
artilicc, chicanery, or unfair advantage, will be amply attested 
by his brethren ot the profession, who in the circuits, at least 
of his regular practice, trusted with entire confidence to the 
fidelity as well as accuracy of his reports of causes for the 
; revision of Courts of appeal ; and instances are remembered 
where the decision has been for his client and a statement of 
the cause made by the presiding judge happened to be less 
f\ivorablc to his adversary, than the facts justified, that it has 
been substituted by a case stated by him, and entered by con- 
sent as a more exact portraiture of the trial below. 

To his hospitality and kind intercourse with the gentlemen 

of the profession, his liberality, and assistance to its junior 

members whom his gracious demeanor and familiar manners 

won, no less than his spirited and intelligent conversation 

entertained and improved them ; to his unselfish and genial 

nature and an integrity on which no temptation everbrouglit 

a stain, the occasion permits time only to allude, before closing 

our review of his professional life. Had he been called to the 

ofliee of Attorney General of the United States, by General 

Jackson, at the period of his first election, of which Mr. 

Badgru had been an ardent and efficient advocate, as many 

of his friends entertained expectation, and continued from 

that time his practice in the Supreme Court of the United 

States, it is hazarding but little to say that his fame would 

have equaled that of any advocate in the history of American 

Jurisprudence. 



Bmmuin'Muwimnmxt.i.tmtj^-fv vrm 



18 

Of Mr. BadcxEr's brief service at the head of the Navy De- 
partment, •excepting his recommendation of the establishment 
of a Home Squadron to patrol the Gulf of ^lexico, and West 
Indian seas, as a protection against piracy, and to be prepared 
for any sudden hostile demonstration on our coasts, in addi- 
tion to those maintained on foreign stations, (a measure since 
adopted,) there is no circumstance demanding especial notice. 
He had accepted the appointment, at the request of President 
Harrison, with reluctance, retained it by the expressed desire 
of his successor, and resigned it as soon as the breach between 
Mr. Tyler and the party that elected him was found to be 
irreparable. 

Equally unsought and unexpected was his election to the 
Senate of the United States, when absent from the seat of 
government on a professional errand beyond the sphere of his 
usual practice. He entered the Senate in the first year of the 
war with Mexico — held his seat throughout the conflict — du- 
ring the struggle which ensued as to the introduction of 
slavery into the Territories acquired by the treaty of peace, 
threatening then a dissolution of the Union; the compromise 
measures of 1850, under the leadership of Clay^ the election 
of Gen. Taylor; the succession of Fillmore; the election of 
Pierce and the first half of his term, including the organiza- 
tion of Territorial Governments in Kansas aa:id Nebraska; a 
period of more fierce, convulsive and (as the sequel has proved) 
fatal party agitation than any in /Vmerican history, except 
the years that have succeeded it. Even now, after the dread- 
ful chastening that all have received from recent calamity, it 
is difficult to recur to it without reviving passions inconsis- 
tent with the solemnities of the hour, and the charities^ in- 
spired by common suffering. 

On the one hand, it was maintained that inasmuch as these 
acquisitions of territoiy had been made by the common con- 
tribution of men and means from all the States, the citizens 
of any State were at liberty to emigrate and settle iipon them, 
and to carry any property they might, possess, including^, 
slaves; that this was the case by virtue of the operation of 



r^iiiii iMiiim III I III iii 



mOut.L.ilU.iJ.tj, 



.'tiVLtJWr'W JUffWW 



19 

the Constitution over the new territory proprio viyore. It 
was furtlier declared that Congress had no authority to legis- 
late in contravention of this right; and in the progress of the 
dispute this latter position was extended into the assumption, 
that it was the duty of Congress to enact laws to ensure it, 
and that a failure in this was a breach of Constitutional duty 
80 gross as to justify the injured States in withdrawing from 
the Union; a power which, it was declared, that every State 
held in reservation and might exercise at pleasure, the Con- 
stitution being but a compact having no sanctions for its per- 
petuation. 

On the other hand, there had been for years at the North a 
party organization, not numerous at first, but which at this 
period had swollen into a formidable power, whose avowed 
object was the extinction of slavery; who had denounced the 
constitution, so far as it upheld or tolerated it, as a covenant 
with the infernal powers; had absolved themselves from its 
maintenance in this particular, and avowed their preference 
for a disruption of the Union unless slavery should be abol- 
ished, in the territories and States as well. ^More moderate 
men in that section, while not agreeing with these extremists, 
denied emphatically either that the Constitution gave to 
slaverv a lootimr in the territories or bound CongTcss to main- 
tain, or not interfere with, its existence there; and that in 
the exercise of a legislative discretion they might encourage, 
I tolerate or forbid it;- the great majority favoring its prohibi- 
tion in the ten-itories while they held themselves bound to 
non-interference in the States. 

In this conflict a third party arose which affirmed that 
Congress had no power over the question in the territories: 
that the people who settled hi those distant regions were en- 
titled, (not only when applying for admission into the Union 
as a State, but whenever organized into a territory or at any 
time thereafter.) to determine on the establishment or rejec- 
tion of slavery as well as all other questions of domestic 
pohcy; and by consequence, that the whole history of the 



ETi:SI£SS2H 



20 

Government in the regulation of its territories had been an 
error. 

Either of the contending parties was accustomed to tole- 
rate very considerable aberrations and even heresies against 
its creed, to acquire or preserve party ascendancy, or to 
achieve success in a Presidential election ; to which latter ob- 
ject no concessions and no sacrifices were deemed excessive. 
And the flame on the main topic was probably fanned by 
many, on both sides, with a view to the marshalling of forces 
for this quadrennial contest for power and patronage. 

Be this as it may, never were themes presented for section- 
al parties so well adapted to deepen and widen the opened 
breach between them, or pressed with more intensity orzeaL 
In the ardor of the contest old landmarks were discarded, 
and old friends repudiated, if not found in accordance with 
new positions assumed in its progi'ess. William Pinckney, 
the great champion of Southern interests, at the period of 
the Missouri question, was pronounced an abolitionist on the 
floor of the Senate by the highest Southern authority, and 
the doors of Farieuil Hall Avere closed against Daniel Web- 
ster, whose eloquence had illustrated it more than that of any 
man ever had before or ever will again, by the authorities of 
Boston, for words of truth, soberness and conciliation, spoken 
in the Senate; and this while Clay (once so much deferred 
to by them as a party lea 'c) sat by, admiring and encoura- 
ging at every sentence Webster had uttered. 

Between these excited parties, Mr. Badger stood approved 
by neither. As far back as the ^lexican war, perceiving, as 
he thought, the dangers to flow from the adjustment of the 
interests of slavery, provided conquests should be made and 
new territories acquired, he had repeatedly endeavored to 
bring the wnr to a close and to bar out those dangers to the 
Union, by abstaining from the acquisition of new domains, 
while the fierce contestants were both eager for extensive 
conquests: the one with the flattering, but delusive hope of 
expanding the area of slavery, the other with the settled pur- 



■BB 



■»o 



21 

pose to apply to all such conquests the Wilraot proviso and to 
exclude slavery. 

ft 

When peace came with those splendid acquisitions of ter- 
ritory so gratifying to the national pride, he was not disap- 
pointed in discovering in them an apple of discord which was 
to prove fatal to tranquility at home. In the contention which 
was thus inaugurated, he steadily supported the rights of his 
OMm section, maintaining the justice and expediency of open- 
ing the territories to all emigrants without restriction as to 
any species of property. In an argument, replete with scrip- 
tural learning, he defended the servitude existing in the South, 
under the name of slavery, as not inconsistent with the divine 
law, more than justified by Jewish precedents, and not forbid- 
den by the benignant teachings of the Savior of the world, 
who found in the Roman Empire, at His coming, and left 
without condemnation, a system of far greater severity. He 
reminded northern senators of the responsibility of their an- 
cestors for the introduction and establishment of slavery in 
this country : — ours being but purchasers from them, at second 
hand, for a consideration vastly greater than they had paid; 
the profits being the foundation ot mucli of their wealth 
which their consciences did not forbid them to retain. He 
brought home to their sense of duty and of honor the obli- 
gation to maintain the constitution, so long qm- it remained 
the constitution, in all its parts; as well those which as indi- 
\'iduals they disapproved, as those to which they assented. If 
any representative of the sjuth urged any or all of these con- 
siderations in fa-vor of the rights of his section, in the subject 
of dispute, with more earnestness and ability than Mr. Badger, 
it is some one whose argument has not fallen under my obser- 
vation. But he refused to go further. He refused to argue 
that Congress had no constitutional power to legislate on the 
subject of slavery in the territories. He discussed the ques- 
tion with boldness and adduced a decision of the Supreme 
Court, announced in an opinion of Judge Marshall, to the 
effect, that the power did exist; and therefore he addressed 
his appeals to the legislative discretion of Congress. For this 



OMi 



I 



22 

he incurred the disapprobation of the extreme advocates of 
southern interests. But his opinion on the question had been 
dehberately formed, and though he maintained that the exclu- 
sion of the southern emigrant with his pecuKar property from 
these territories would be an unjust exercise and abuse of 
power, he declined to make what he believed to be a false 
issue, in pronouncing it unconstitutional. He dealt with the 
whole subject in the interest of peace, in subordination to the 
constitution, in the hope of allaying excitement and with an 
earnest desire for continued Union. He therefore gladly co- 
operated with his old political associates Clay, Webster, Pearce 
of Maryland, Bell, ]\Iangum, Berrien, Dawson, as well as his 
democratic opponents Cass, Douglass, Dickinson, Foote and 
other compatriots of both parties, in the well remembered 
measures of compromise of 1850, which calmed the waves of 
agitation, and promised a lasting repose from this disturbing 
element; — an effect which was fully realized, with an occa- 
sional exception of resistance to the law in the surrender of 
fugitive slaves, until the unfortunate revirgl of the quarrel 
by the lepeal, in 1854, in the law for the organization of the 
territories of Kansas and Nebraska, of the provision of tlie 
Missouri compromise, as it was called, by which slavery was 
restricted from extending north of thirty-six degrees, thirty 
minutes, the *i»tthern boundary of that State. His partici- 
pation in this measure of repeal ]\Ir. Badger regarded as the 
most serious error of his public life. He lived to see conse- 
quences flow from it which he had not contemplated, and 
publicly expressed his regret that he had mtii given it his 
support. Not on the ground of any breach of faith , for, as 
he amply demonstrated in his speech on the passage of the 
measure, the representatives of the north in Congress had, in 
the Oregon territorial bill, as well as in other instances, demon- 
strated that they attached to it no sanctity. Yet many good 
men among their constituents did : — and politicians who had, 
since the settlement of 1850, found "their occupation gone," 
eagerly welcomed this new theme for agitation. The expe- 
rience of climate, labor and production had shown that 



fEm 



23 

African slavery could not be attended with profit north of 
this parallel, and the rej^eal Avas regarded as a flout, defiance 
and aggression which provoked the resentment of thousands 
who had never "before co-operated with that extreme faction 
which conspired the destruction of slavery in despite of the 
constitution. Followed up as this measure was by the impo- 
tent attempt to enforce protection to the institution in Kansas, 
where it neither did nor could exist, without unreasonable 
aid, which was bronght forward after Mr. Badger left the 
Senate, and in which there is no reason to believe he would 
have concurred, it aroused an opposition, which, when embo- 
died in the organization of party, was irresistible. He was 
no propagandist of slavery, though all the aifections of his 
home and heart seconded the efforts of his great mind in 
defending it as an institution of the country recognized and 
guaranteed by the constitution of the United States. lie was 
too sagacious to believe it could be benefitted in any way, by 
provoking the shock of civil war, and too truthful and patri- 
otic to trifle with it, as a means of rallying parties or t<j 
subserve any of the interests of faction. In voting for the 
repeal of the ]\Iissouri restriction, he looked upon it as having 
been over-valued in its practical importance at first, aban- 
doned by the north as efiete, if not disregarded from the 
beginning, and its removal out of the way as but conforming 
the system of territorial law to that part of the compromise 
of 1850, pertaining to the territories, which left the adoption 
OT rejection of slavery to be decided by the inhabitants when 
framing a constitution, preparatory to their admission as a 
State of the Union; not anticipating the recoil in public senti- 
ment, which was the first step in the overthrow of slavery itself 
I have been thus tedious in review of the history of this 
period, because it was upon topics arising out of this great 
subject of controversy, ever uppermost in the public mind, 
that ]\rr. Badger made his most frequent and probably most 
elaborate eftbrts in the Senate, and for the further reason that 
in the heated atmosphere of the timehisopinionsas expressed 
and the moderation of his course were, by some, supposed to 






™"'i"'"'l"^^"^^"^^^^^Mi^^"W™Hi1— i^^lWIIIII II illll II I I I 

24 

imply indifference to tlie interest;? of his sectioii. Time and 
disaster are not imfrequently necessary to vindicate true 
wisdom. 

His public career was but an episode in his life, which not 
having- asjDired to, there were branches of political science, to 
which he had devoted no study. He was as averse to the de- 
tails of revenue and finance as Charles James Fox, and could 
probably have united with that statesman in the declaration 
that he had never read a treatise on political economy. But 
on all subjects pertaining to general policy, or to the history, 
jurisprudence, or constitution of the country, he commanded 
a deference yielded to scarcely any other individual, after 
the withdrawal of JMr. Webster; and as a speaker and writer 
of English, according to the testimony of Judge Butler, of 
South Carolina, had no peer in the Senate, save Webster when 
there. 

He delighted in repeating the rule for the construction of 
the Constitution, which he had heard enunciated bv Judire 
]\rarshall in the Circuit Court for North Carolina. " The Con- 
stitution of the United States" (said he) "is to be construed 
not stridly, not loosely, but honesfly. The powers granted 
should be freely exercised to effect the objects of the g-rant, 
while there should be a careful abstinence from the assump- 
tion of any not granted, but reserved." With this simple rule 
for his guide, with an innate love of truth and wonderful per- 
spicacity in its discernment, Avith an ethics which permitted 
no paltering in deference to the authority or suggestion of 
faction, his arguments on Constitutional questions were mod- 
els of moral demonstration. Such wasthe confidence reposed 
in his accuracy and candor on questions of this nature, that 
his opinions were sought for practical guidance, alike by 
friends and opponents. And such was the personal favor and 
kindness entertained towards him by all his associates that, 
at the expiration of his term, the rare compliment was paid, 
of the adoption, by an unanimous vote of the Senate, of an 
expression of regret at his departure. 



25 

After ceasing' to be a Senator, he held, until the commence- 
ment of the late calamitous \v;ii-, the ])lace of one of the lie- 
gents ot the Smithsonian Institution.. In his proiessional vis- 
its to Washmgton, until the interrui»ti(in of intercoii;j|B by 
that dire event, and in all his correspondence witli public 
)ncn, he never departed from that course of moderation and 
peace on the exciting- subject of the times, ^vhicli had charac- 
terized him as Sejator: joined heartily in tlie movement of 
his old Whig friends for the organization of a Constitutional 
Union party to abate the violence of faction which was too 
surely tending to disunion, and to make an appeal to tlie peo- 
ple to rescue the country from the impending peril. The re- 
sult of this movement was the nomination for the first offices 
of the Government of Bell and T^verett; and i\Ir. Badger ac- 
cepted the cauditlacy as one of the Electors on this ticket, and 
visited various parts of North Carolina addressing the people 
in its support. In these addresses, with the frankness which 
belonged to his nature, he freely admitted that there was a 
strong probability of the election of Mr. Lincoln, not merely 
from a division of votes among three other candidates, but 
from the strength of J lis party in the Northern States, founded 
on the ])rinciple of opposition to slavery; and charged, that in 
that event, it was the design of a large portion of the sup- 
porters of ]\Ir. Breckenridge to attempt to destroy the Union 
by the secession of the Southern States: and that there was 
reason to believe his defeat and the election of Mr. Lincoln 
was desired by this latter class, because of the oi)portunity it 
would afford for a dissolution of the Union, a purpose which 
they had long cherished. While, therefore, he advocated the 
election of ]\lr. Bell, he conjured the people, no matter who 
might be elected, to acquiesce in the decision and give no 
countenance' to secession. Although, with the exception of 
a small fraction, the people were averse to disunion, the ma- 
jorit}- were persuaded, that this was an overstatement ot the 
case, and cast their votes for ]\Ir. Breckenridge as for an usual 
party nominee. 



■o- 



26 

When the election was past, and the proceedings which 
immediately followed in other States verified Mr. Badger'« 
anticipations, the people began to turn to him, and those of 
like opinions, for guidance in the future. And to persons in 
distant parts of the Union it i:-, no doubt, a matter of mystery 
how he, with all his antecedents in Itivor of Union, became 
involved in war against the government of the United States. 
The case of Mr. Badger, in this particular, is the case of at 
least three-fourths of the people of the State, who relied upon 
his counsels for their action, quite as much as upon those of 
any other individual, and requires a word of explanation. 
Notwithstanding the long and acrimonious disputations 
which had been carried on in Congress, and* at the hustings, 
and the sentiments declared in opposition to slavery by Mr. 
Lincoln and his supporters, Mr. Badger maintained, that his 
election afforded no sufficient cause for a resort to revolution ; 
(as to the right claimed, of a State to secede, he had never 
for a moment believed in it or given it the least countenance;) 
that the accession of such a party to power would require in- 
creased vigilance over the rights and interests of the South, 
but the majority in Congress was not lost to us, if the mem- 
bers fi-om all the Southern States would remain and be faith- 
ful, and that the judiciary was open to any just complaint, 
even if the Executive should attempt aggression. And after 
every State south of North Carolina, to the confines of ]\Iex- 
ico, had adopted ordinances of secession, the people of the 
State rejected a proposition to call a Convention to consider 
the question. 

But when Virginia, our neighbor on the Northern frontier, 
also withdrew, and Tennessee on the West had taken meas- 
ures for the same object, when war had been actually begun, 
no matter by whose rashness or folly, and the only alterna- 
tives presented were in the choice of the side we should es- 
pouse ; considerations of national or State interest, safety and 
necessity, such as are not unfrequently forced upon the decis- 
ion of neutrals by the conduct of belligerents not connected 
under the same government, at once occurred and were 



Oa 



27 

obliged to be weighed with the obligations of Constitutional 
duty. Our borders were surrounded on all sides, except that 
washed by the ocean, by seceded States. Our youth must go 
forth to battle witli or against these States. The Union, wc 
had so long and so sincerely cherished, was a Union in its in- 
tegrity ; and next to that, and as a part of it, ;i Union with 
neighboring States, in which were our kindred, and most in- 
timate friends, and identical institutions. Slavery, whatever 
may be thought of it elsewhere or now, constituted more than 
one half of all our individual and public wealth. It had paid 
our taxes, built our Railroads, reared our seminaries of educa- 
tion and charity, and was intimately connected with the or- 
der and repose of our society. Withal, in the acrimony of a 
long quarrel its maintenance had become a point ot honor. 
In the actual posture of affairs which promised to' continue 
while the war lasted, instead of fifteen States in which slavery 
existed, whose representatives were to maintain a common 
interest in the halls of Congress, there were to be but three, 
or at most four, and all these, except our own, with a minor 
interest in the svstem. A civil war which threatened to be 
sanguinary and protracted, kindled avowedly for the protec- 
tion of slavery, was not likely to end in defeat of the insur- 
gent States, without the destruction of the institution in 
theni ; and after no long time, in the adhering States also. 
Though far from approving the course of the recusant States, 
victory on the side of those who held the reigns of Govern- 
ment could not inure in benefit, nor without serious disaster, 
to us. 

These ties of blood, vicinity, institutions and interests, the 
desire to avoid internecine strife among our own people, 
which must have been immediately precipitated by a zealous 
minority with the local Government, Legislative and Execu- 
tive, in their hands, impelled j\Ir. Badger and those who acted 
^\nth him, to decline to take arms against their own section, 
in favor of the distant authority of the National Government, 
and as a consequence to unite with those whose action they 
had deprecated and endeavored to prevent, and with whom 



Di 



28 

they had had httle sympathy or co-operation in the politics of 
the past. The support of the undertaking-, if concurred in by 
all the slaveholding States, M^hich was contidently represen- 
ted to be certain, appeared to afford hope of a safer and better 
future than its suppression by torce. The determination of 
the question, as I know, occasioned him pain and embarrass- 
ment. But when made, it was firmly maintained. He ac- 
cepted a seat in the Convention which passed the ordinance 
declaring the sepai-ation of the State from the Federal Union, 
and gave to this ordinance his sanction: not however, without 
a distinct declaration of his disbelief in the doctrine of seces- 
sion, as a Constitutional right. He also sustained measures 
for the prosecution of vigorous war, as in his conception the 
surest and shortest road to peace: but was ever vigilant of 
the dignity and just rights of the State, the encroachments of 
the military authority, the jurisdiction of the civil tribunals 
and the protection and liberty of the citizen. He sought no 
patronage or favor for himself or his. His sons served in the 
ranks of the army and bore their part in the perils and ad- 
ventures of war. 

While it yet raged he was stricken bv the hand of disease 
which partially obscured his faculties and withdrew him from 
public view. 

He survived, however, until after the return of peace, and 
in the twilight of mind, with which he was yet favored, re- 
joiced in the de^verance of the Country from the calamities 
of war, and very sincerely acquiesced in a return to his alle- 
giance to the Govei'ument of the United States. 

These observations on the professional and ^uiblic life of 
the subject of our discourse have been so prolonged, that the 
occasion will permit but a few further remarks upon his gen- 
eral attainments, his intellectual and moral character, and 
usefulness as a citizen. 

Tt was the remark of Lord Bacon that "reading makes a 
full man, conversation a ready man, and writing an accurate 
man." Mr. Badger's reading was confined, with the excep- 
tion of that knowledge of the dead languages, which he had 



.ji.!rmai.,iiui jKr-ai-.; 



o 



""O 



2) 



acquired in his youthful studies, to the literature of our own 
language. With the most approved authors in this he had a 
familiar acquaintance, and, as already remarked, excelled in 
his accomplishments as a critic. The field of learning, wliicli 
next to jurisprudence, he most affected, and perhaps even 
preferred to that, was moral science. Upon the sublime 
trutlis of this science in the conversations of his friends, liis 
remarks and illustrations were often not unworthy of Alex- 
ander or Wayland, Butler or Whatelv. "In it" (says one ot 
the most intimate of his friends and cotenqjoraries) '"the 
rapidity of his perceptions and the accuracy of his deductions 
were marvelous. Place l.)efore his mind any projjosition of 
moral science, and instantly he carried it out, either to exact 
truth most beautifully enunciated, or reduced it to an absurd- 
ity." To his acquisitions in the kindred topic of didactic 
divinity, or theology as a science, only a professional theolo- 
gian can do justice. An earnest member of the Protestant 
Episcopal Church, though but a layman, he ventured on more 
than one occasion to discuss matters of discipline and doc- 
trine in the character of a Pamphleteer, in opposition to cler- 
gymen of note; and in a memorable instance with the head 
of the diocese himself: with such signal success, that al- 
though the Bishop ultimately united himself with the Eo- 
mish church, whither Mr. l^adger charged that he was tend- 
ing, not another member of his denomination left its com- 
munion. 

He was averse to the labor of writing, and beyond an ad- 
dress before the literary societies of the University, the re- 
ports, by his ov.'u hand, of some of his speeches in Congress, 
and other pamphlets, or subjects political or religious, has 
left few written performances. But he had the accuracy, in 
thought and speech, of a practised writer. 

In conversation, he realized, in the fullest extent, Bactm's 
idea of "readiness," and shone with a lustre rarely equalled. 
The activity and playfulness of his thoughts, and the gayety 
of his disposition, inclined him to paradox and repartee 
to such a degree that his conversation was oftentimes but 



30 

amusing levity. But in a moment it rose to the profoundest 
reflection and most fascinating eloqiience. His knowledge 
was ever at instantaneous command, as it was far more the 
result of his own meditations than of acquisitions from others, 
and fancy lent her aid in giving a grandeur to his conceptions 
on all the su1)jects of his grave discourse. After all the 
public displays in which he enchained the attention of judges, 
jurors, senators, or promiscuous assemblies with equal admi- 
ration and delight, it is a matter lor doubt, among those who 
knew him well, whether his brightest thoughts and most 
felicitous utterances, the versatility of his genius, and the 
vast range of his contemplations, were not oftener witnessed 
in his boon and social hours, in the converse of friends, 
around his own hospitable board, or at a village inn, or on a 
public highway, all without pedantry or apparent eftbrt, " as 
if he stooped to touch the loftiest thought,"' than in these 
elaborate and studied exhibitions. 

He affected no mystery, and wore no mask, and stood ready, 
in familiar colloquy, to make good, by nev,r and apt illus- 
trations, any sentiment advanced in formal argument, or to 
abandon it as untenable if satisfied of error. 

His reverence for truth, to which allusion has been already 
made in the course of these observations, Avas, even above his 
intellectual powers, his most striking characteristic. He was 
accustomed to speak of it "as the most distinguished attri- 
bute of God himself, and the love of it, as giving to one moral 
being an eminence above another." To its discovery he de- 
lighted to apply the powers of his remarkable intellect; to 
its influence he was ready to surrender his most cherished 
convictions whenever found to be erroneous. 

The fruits of this were seen in the crowning virtues of his 
character ; a christian of humble and intelligent piety, without 
intolerance towards others, a laAvyer without chicanery or 
artifice, a statesman without being a factionist, a party man 
above the low arts of the demagogue, a gentleman and citizen 
enlightened, social, charitable, liberal, impressing his char- 
acter upon the manners and morals of his times; ready to 



render aid in eveiy good and noble work, and prompt to resist 
and repel any evil iuiiuence, no matter by what array of num- 
bers, power or vitiated public opinion supported. I have 
known no man to whose moral courage may be more fitly 
applied the ideal of the Latin poet, as rendered in free trans- 

ation : 

" The man whose mind on virtue bent, 
Fursiips some greatly irood intent 

Willi untli verted aim. 
Serene bcliolds tlie angry crowd, 
]S'or ean their elamors liircc and loud 

His stubborn honor tame. 
Not tlR' ]>roud tyrant's liercest threat. 
Not storms, that from their dark retreat 

The rollinti: >ur,fces wake; 
Not Jove's liread bolt that shakes the pole, 
The tirmer purpose of hi-; soul 

With all its power can shake." 

In the latter years of his life, actuated by a desire to be 
useful in his diiy and generation, wherever opportunity and 
his ability might allow, he accepted the office of Justice of 
the Peace, an office which, to the honor of those who have 
filled it in North-Carolina from the first organization of civil 
government until now, has ever been performed without pe- 
cuniary reward ; and took considerable- interest in adminis- 
tering justice in the County Courts of Wake, giving to this 
inferior tribunal the dignity and value of a Superior Court, to 
the great satisfaction of the bar and the public. 

As a part of his public service it is proper also to add, that 
for man}^ years Mr. Badger was one of the most active Trus- 
tees of the University of the State, and especially as a member 
of the Committee on lands then held in Tennessee, from his 
professional abilities, without fee or reward, rendered signal 
assistance to the Institution. 

He w^as thrice married: first, as before mentioned, to the 
daug^iter of Governer Turner: second, to the daughter of Col. 
\Vm. I'olk, and third to Mrs. Delia B. Williams, daughter of 
Sherwood Haywood, Esq. : in each instance forming an al- 
liance with an old family of the State, distinguished by public 
service and great personal worth from an early period. The 
last named lady, the worthy companion of his life for thirty 
years, who survives him as his widow, receives in her be- 









32 

reavement the condolence and sympathy, not merely of this 
community and State, but there are those in distant lands 
and in other States of the Union whom, not the lapse of years 
nor the excitements of intervening events, nor the fiery gulf 
of civil war, shall separate from a friendship accorded to her, 
and her departed husband, as representatives of the personal 
character, the society and domej;tic virtues of their native 
State in better days of the Republic. 

By the two latter marriages he left numerous descendants. 

Takinfr his accustomed walk at an early hour in the morn- 
iuft- of January 5th, 18Go, he Was prostrated by a paralytic 
stroke near the mineral spring in the environs of the city of 
Ealeigh. And although retaining his self-possession and 
abilty to converse imtil assistance was kindly fui'nished, on 
the way home his mind wandered, and before reaching his 
residence, his faculty of continuous speech deserted him, 
never again to return. His mental powers after a brief in- 
terval rallied; insomuch, that he took pleasure in reading, 
and in listening to the conversations of friends, whose visits 
afibrded him much satisfaction ; and with assistance could 
walk for exercise in the open air, but was never afterwards 
able to command language, except fVjr brief sentences, failing 
often in these to convey his full meaning. 

In this condition he lingered until the 11th of jMay, 18f)6, 
when, after a few days illness from renewed attacks of the 
same nature, he expired, having recently completed the 71tt 
year of his age. 

My BiiETiiRKN OF THE Wake Bar : — My task is done. I have 
endeavored but "to hold the mirror up to nature." If the 
image reflected appears, in any of its features, magnified, it 
was not so intended. Yet the memory of a friendship, da- 
ting back to kind ofSccs and notice in my student life, and 
extending through all my active manhood, may not have 
been without its influence in giving color to the picture. But 
the character in our contemplation was of no ordinary pro- 
portions. At the bar of the State he wore the mantle of Gas- 
ton and Archibald Henderson, for a much longer period than 



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33 



either, worthily and well, with no diminution of its honors. 
In the highest court of the Union, he was the acknowledged 
compeer of Webster, Crittenden, Ewing, Johnson, Berrien, 
Walker, Gushing and their colleagues. That he did not sit 
in the highest seat of justice of the State and nation, as pro- 
posed successively by the Executive of each, is imputable to 
no deliciency or unworthinoss for the station, his adversaries 
being judges. In the Senate, when Clay, Webster and Cal- 
houn still remained there, not to name others of scarcely in- 
ferior repute, he was among the foremost men in that august 
assembly upholding the rights of his own State and section, 
with manliness and ability, but with candor, moderation and 
true wisdom, which sought to harmonize conflicting elements, 
and avert the calamities of civil strife ; in morals inflexiljle, 
without stain or susi^icion of vice ; in manners and social 
intercourse, genial, /-ank, hospitable, with colloquial powers 
to instruct, amuse and fascinate, alike, and "with a heart 
open as day to melting charity ^ "jpie fame of such a man is 
a source of natural and just pride to the people of the State. 
This sentiment is that which the poet describes in the Eng- 

lishman, when he sings 

" It is cuousili to satisfy the ambition of a private man, 
Tliat CliaUjain's language was his mother tongue. 
And WolfT^reat name compatriot with his own." 

IIow he was'appreciated in this city where he so long re- 
sided, and the State which he so ardently loved and so faith- 
fully served, is proved by the evidences of this day,— the 
suspension of business and the concourse of this most respec- 
table assembly, many from distant portions of the State, who 
have come iip to unite Avitl> us in these "last sad rites of ten- 
derness " to one so much admired, esteemed and loved; as 
well as by the general, and in many instances, public expres- 
sions of regret throughout North Carolina upon the announce- 
ment of his sad affliction and subsequent death. How much 
he will be missed as a member of the community, as the 
friend of order and law, religion and unquestionable morality, 
as a professional man, coimsellor and advocate of unrivalled 
ability and reputation, as an intellectual and cultivated man. 



■:r.'::tf;..*jaii gB?^ : »Si^'cL. j;U>^--^MB ^WAV)»^o.^.y»<^.tMMM;. toai«ik^iaBfc^ V :KSr!^ZHg«AS«ai- n 



34 

witli armor bright and powers ever at his command, present- 
ing a model for the emulation of oiir ingenuous yputh, as a 
public character, an adviser and true friend, buii- no flatterer 
of the people, and an unflinching supporter of their rights 
wherever truth and duty might lead, time and experience 
may demonstrate. There is no public aspect,, however, in 
which his loss is so much to be deplored, as in the relation 
he bore to the past, and his probable efficiency in solving the 
problem of the day. Who so capable of interpreting the 
constitution which forms our government, and the alleged 
laws of Var by which it is claimed to be suspended or super- 
seded, as that gifted mind and sincere nature, so trusted on 
these topics in former years, and so thoroughly imbued with 
the spirit and teachings of JMarshall ? Who so deserving to 
be heard on the pacification and re-establishment of order and 
right among thirty-five millions of freeVmen, as he who by 
his temperance, calmness and intelligent constitutional opin 
ions, in-the commencemSrft of our national difficulties, incurred 
the censure of many in our own section of country, without 
receiving the approbation of their adversaries ; who, in a period 
of most unusual party acrimony, never violated the courtesies 
of debate, and Avhose personal associations and friendships 
were found alike on either side of the great *line of sectional 
division ? Who so fitted for the explosion and correction of 
error, of allaying the ignoble passions of hatred and revenge, 
and recalling tlie national afl!ections inspired by a common 
and honorable history : — to remove the scales from eyes that 
will not see, and to rebuhe the rage ol faction, threatening 
to realize the assertion of Ish. Fox, in his historv of James, 
the second, tliat "the most dangerous of all revolutions is 
a restoration ? " 

To that good Being in Avhose hands are the destinies of 
nations and individuals, by whose divine agency crooked 
paths ^re often made straight, and issuegl granted out of all 
troubles, in ways not visible to human eyes, let us unite in 
commending every interest of our beloved country. 



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